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2012-06-27

Experts say a new Code of Conduct for the South China Sea won't resolve longstanding disputes.

China's territorial claim to the South China Sea includes two disputed island chains. RFA

New guidelines governing maritime interactions in the South China Sea are expected to do little to resolve disputes between nations that lay claim to territory in the region, experts said Wednesday.

A draft of the Code of Conduct (COC), which the Association of Southeast Asian Nations (ASEAN) and China agreed to pursue last year, is expected sometime next month.

The rules are aimed at creating a framework for managing disputes in the South China Sea, and the new draft would replace in November an earlier set of guidelines aimed at promoting peaceful interaction in the region adopted a decade ago.

Those earlier guidelines, known as the Declaration of Conduct (DOC), are widely seen as ineffective in light of recent dustups in the South China Sea that have led to standoffs between China and other claimants, which include Vietnam, the Philippines, Malaysia, Brunei, and Taiwan.

The most recent dispute was sparked on April 8, when Chinese merchant ships prevented a Philippines naval vessel from arresting a group of Chinese fishing boats that said they were taking shelter from rough seas near the island. Both countries sent ships to the area, ratcheting up tensions on the water and leading to a diplomatic row that has stoked nationalism on both sides.

Since the introduction of the DOC in 2002, there has been little visible progress on the guidelines, and China has preferred to negotiate with each country individually instead of dealing with a unified bloc.

Carlyle Thayer, a Vietnam scholar at the University of New South Wales, said that ASEAN should first determine a set of guidelines for conduct between its claimant members before negotiating with Beijing, which says China controls the entirety of the South China Sea.

"ASEAN made a mistake. Once it signed the DOC it said that was the first step toward a COC and it's fixated on getting an agreement with China. And that's wrong," he said at a conference in Washington on Wednesday.

"Maritime security is the same through all of Southeast Asia and all the maritime spaces," he said.

"It should be Southeast Asia coming up with its own Code of Conduct in its own waters. Agreeing among themselves – because they do have disputes – and then opening up to the outside powers to sign on to it."

He warned against creating a COC "just for show" by the 10-year anniversary of the DOC in an effort to legitimize ASEAN's clout in the region.

"What's going to be more binding if it's another political declaration without teeth in it, with no dispute settlement mechanism, and no clear definitions?" he asked.

"And if it's just being done for show – I'm worried that that's what ASEAN is about," he said, noting that the international body had determined "come hell or high water" that it would draft a COC by July.

"And then in November, on the tenth anniversary of the DOC's signing in Phnom Penh, we're going to have cymbals and clashes and all sorts of wonderful dancing onstage celebrating a wonderful achievement of a new COC, and then it will be business as usual."

He said that underlying issues remain between ASEAN and China that a COC simply would not do enough to defuse.

"Sovereignty disputes remain. There is no prospect of their settlement," he said.

"There is a prospect that they can be managed, but it does mean that both sides would continually protest and be wary and mistrust actions of the other side which seeks to up their sovereignty claims through administration and occupation."

Falling short

Ian Storey, senior fellow at the Institute of Southeast Asian Studies in Singapore, agreed that new guidelines for conduct would fall short of both resolving territorial disputes and preventing clashes between nations on the South China Sea.

"These are conflict management mechanisms, they are not conflict resolution mechanisms. They do not provide for a mechanism to resolve the territorial claims or the maritime boundary claims," he said.

"Secondly, even if properly implemented, I think it's very unlikely that the DOC/COC process will have a significant impact on the central drivers of the dispute."

Storey said he was "not terribly optimistic" about the future of the process to determine conduct in the region.

"I think what will happen ... is that under the pressure of this deadline – this November deadline, which is the tenth anniversary of the DOC – ASEAN and China will produce a compromise agreement that will not go much beyond the existing 2002 declaration," he said.

"In other words, I think it will just be another symbolic agreement that will not have a major impact on the dispute."

Washington, which has sought to counter China's growing economic influence in Southeast Asia, acknowledged potential challenges to dispute resolution in the South China Sea, but expressed its continued support for the process of diplomacy.

Kurt Campbell, the U.S. State Department assistant secretary for East Asia and the Pacific, said Washington would not choose sides amongst claimants and would continue to support dialogue aimed at putting aside differences in the region.

"We recognize some of the looming challenges in the South China Sea and what we have seen of late has been an increase in diplomacy between ASEAN and China about aspects associated with a potential Code of Conduct," he said.

"We support that process of diplomacy that is underway now."

Campbell said that the U.S. has maintained its stance that the territorial disputes should be handled without "the use of force or coercion" in the interests of all nations, including those outside of the region.

"We seek a larger piece of stability, which we believe is not only in the interest of the United States and other trading partners that rely on the sea lines of communication that run through the South China Sea, but to all the players involved."

Campbell said that in the coming months Washington plans to make its presence known in Southeast Asia during Secretary of State Hillary Clinton's visit to Cambodia for next month's ASEAN Regional Forum in Phnom Penh.

"What we did not have throughout Southeast Asia and with other countries are these kinds of regular strategic engagements, and we have sought to do that with ever country in Southeast Asia," Campbell said.

"The question will be, frankly, can they be sustained – can you maintain this level of commitment?" he said.

"But I will tell you from my experience it will be essential. And that will be one of the ways ASEAN and Asian friends make judgments about whether we are serious."